Justice Jackson and the Second Flag‐Salute Case: Reason and Passion in Opinion‐Writing

In 1943, the Supreme Court handed down West Virginia State Board of Education v. Barnette. ¹ With Justice Robert H. Jackson writing for the six‐Justice majority, the Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state‐imposed obligations that the children and their parents contended were acts of idolatry that violated biblical commands. Judge Richard A. Posner has said that Justice Jackson's effort “may be the most eloquent majority opinion in the history of the Supreme Court.” ²     

The Case of William Dick: Ransom County, North Dakota

In May 2009, a decision of the United States Supreme Court with North Dakota roots turned fifty years old. A case unique in the annals of the law, Dick v. New York Life Insurance Company ¹ still fascinates lawyers today. Factually, the case presented a strange question: could an experienced hunter accidentally shoot himself not once, but twice? Some of North Dakota's finest lawyers, including Philip Vogel, Donald Holand, and Norman Tenneson, aimed to get to the bottom of that matter. The judges were equally impressive: Judge Ronald Davies of the federal district court; Judge John Sanborn of the U.S. Court of Appeals for the Eighth Circuit; and Chief Justice Earl Warren and Justice Felix Frankfurter. Finally, as a matter of Supreme Court jurisprudence, Dick may have been the last time the High Court granted a petition for certiorari in a case that turned almost exclusively on questions of fact. In honor of its golden anniversary, this article recounts the captivating story of Dick v. New York Life.     

The Life and Career of Justice Robert H. Jackson

Robert H. Jackson was one of the most influential Justices of the Supreme Court in the twentieth century. His tenure on the Court ran from 1941 to his death in 1954, and during that time he participated in landmark cases involving the programs implemented by Roosevelt's New Deal to rescue the country from Depression, having previously served the administration in other roles. He authored a memorable dissent in United States v. Korematsu, the notorious Japanese internment case. ¹ He is also remembered for the role he served as the chief American prosecutor before the International Military Tribunal that tried Nazi leaders after World War II. In some ways, Jackson's fierce independence and the lessons he learned growing up in a small town were the ideal training for the demands and competitiveness of the nation's highest Court. That Jackson's words and beliefs still have relevance in the twenty‐first century is evidenced by the fact that both recent Supreme Court appointees quoted him during the confirmation hearings. ² In this essay, I will examine how Jackson's life experiences influenced his legal career and informed his jurisprudence, and to what extent Jackson lived up to his own vision of the role of a Supreme Court Justice.     

The Judicial Bookshelf

Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

Public Diplomacy in the U.S. Supreme Court: The Warren Years—Part I

The Prime Minister of the Republic of India, Jawaharlal Nehru, and his daughter, Mrs. Indira Gandhi, wandered down the hallway adorned with portraits of Justices in the U.S. Supreme Court building before entering the East Conference Room. There, they were warmly greeted by Chief Justice Earl Warren and his wife, Nina, who had been the Prime Minister's guests in New Delhi only four months earlier. In Washington, Nehru was the special guest of the Warrens, the first ruling head of state to be honored with a formal dinner at the Supreme Court. In attendance were a small but powerful delegation of Indian diplomats and most of the Justices and their wives. In the crisp evening of December 16, 1956, the temperature had dropped to 39 degrees, and the Prime Minister wore a black achkan, the South Asian coat that Americans came to call “a Nehru jacket,” adorned with his trademark red rose in the breast pocket and a white Congress cap. The Indian ladies dressed in striking saris, while the Western women wore long formal gowns.     

“Spreading the Wealth”: Justice Tom C. Clark's Wide‐ranging Efforts to Open the Doors of the Law Clerk Ranks

Associate Justice Tom C. Clark retired from the Supreme Court at the conclusion of its 1966 term to avoid even the appearance of impropriety when his son, Ramsey, became the U.S. Attorney General. “I believe it would be best for me to retire,” Clark wrote one well‐wisher, “Litigants have enough problems without having a father‐son psychology to face. And while there is no actual conflict the potential is there and the appearance of justice is as important and effective as the real thing.” ¹ Clark had served on the Court eighteen years, and he began his retirement with a three‐month, state‐sponsored goodwill trip around the world, which was cut short when he contracted hepatitis in Thailand.     

The Four Good Dissenters in Pollock

The overall theme of this lecture series is great dissenters. This contribution to the series is on the dissenters in the 1895 case of Pollock v. Farmers' Trust & Loan Co. In Pollock, the Supreme Court decided, by a vote of 5–4, that the 1894 federal income tax was unconstitutional. The four dissenters—Justice Henry Brown of Michigan, Justice John Marshall Harlan of Kentucky, Justice Howell Jackson of Tennessee, and future Chief Justice Edward D. White—would have upheld the tax.     

Swift and Erie: The Trials of an Ephemeral Landmark Case

Like jazz improvisation, the meaning of Swift v. Tyson was elusive. ¹ Justice Joseph Story's 1842 opinion concerning an important commercial‐law issue arose from a jury trial. ² When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'‐rights proponents, the Supreme Court endorsed Story's commercial‐law opinion unanimously. ³ New members of the Court and the increasing number of federal lower‐court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress. ⁴ Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety‐six‐year‐old precedent in Erie Railroad v. Tompkins (1938). ⁵ The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie. ⁶     

Australia's decision to initiate Whaling in the Antarctic: winning the case versus resolving the dispute

On May 31, 2010, Australia instituted proceedings before the International Court of Justice in the case of Whaling in the Antarctic (Australia v. Japan). Although Australian politicians had for some time threatened such a course of action, the decision to proceed with international litigation took many observers by surprise, most basically because Japan appeared to be in a strong legal position and the risks associated with the case appeared greater than Australia's prospects for success. This article examines the background to the whaling dispute and suggests two ways in which litigation in the World Court may contribute to resolution of the dispute no matter the legal outcome of the case.     

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Justice William J. Brennan once remarked that the Court has never fully developed a jurisprudence of national security. It is simply too episodic, he said. ¹ Our present Chief Justice would, it would seem, largely agree, though his own research shows some greater willingness for the Court to superintend—at least after the fact ² —the actions of the executive in times of war or similar crisis. My assignment in this essay was to ask the question slightly differently; namely, has the posture of the Court differed in times of hot or cold war, and if so, how has it differed? As will be evident momentarily, that question is less helpful to our present circumstance than it might seem. Why? Because, frankly, we are in neither a hot nor cold war, but something quite different ³ —something that has the potential to be not only hot, but blistering, and something which will likely never be fully appreciated as having gone truly cold.     

Mapp v. Ohio Revisited: A Law Clerk's Diary

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The Obscenity Bargain: Ralph Ginzburg for Fanny Hill

The next‐to‐the‐last witness at the July 1968 hearings on the nomination of Abe Fortas to replace Earl Warren as Chief Justice was James Clancy. Along with another attorney, Charles Keating, who would later gain infamy in the savings and loan scandal of the 1980s, Clancy appeared on behalf of Citizens for Decent Literature, an anti‐smut organization that had filed amicus briefs supporting censorship “as essential to the development of good family living” ¹ in the Supreme Court's important obscenity decisions. ² Clancy asserted that everyone should see the materials Fortas had held were entitled to First Amendment protection, and so he had assembled a thirty‐minute compilation of them for the Judiciary Committee's viewing.     

A New Standard of Review: Craig v. Boren and Brennan's “Heightened Scrutiny” Test in Historical Perspective

“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” ¹ With this one statement, Justice William Brennan, Jr., writing for the majority in the 1976 Supreme Court case Craig v. Boren, ² both reversed the decision of the district court below and—more importantly—redefined the legal standard for equal protection in gender-discrimination cases. Brennan's statement encapsulated decades' worth of development and decisions under the Equal Protection Clause of the Fourteenth Amendment, which bars states from denying “to any person within [their] jurisdiction the equal protection of the laws,” ³ by creating what is now referred to as the “heightened scrutiny” ⁴ standard for judging equal protection legislation. Yet Brennan's creation of a new standard is quite striking, even when looked at in hindsight. How was Brennan able to create this standard of review, and where did it come from? Was this new step taken by the Justices under equal protection adjudication a mistake, or a necessary reality of the period? Through a close analysis of both the history of the Equal Protection Clause in its relation to gender legislation and the history of feminism during the 1960s and 1970s, the inevitability of Brennan's decision becomes clear. In fact, the creation of the heightened scrutiny standard was an inevitable outgrowth of two separate, yet fundamentally related progressions: the steps taken in the Court in its review of gender-discrimination cases in the years prior to Craig v. Boren; and the changes in society's relation to the feminist movement in the pre-1973 and post-1973 periods.     

Joining the Court: Pierce Butler

In a four‐year span beginning in the summer of 1921, five new members took their seats on the Supreme Court, and three of those men—the middle three—arrived on the Bench within four months of each other. The first of the five was William Howard Taft, who, upon the death of Edward Douglass White, was named Chief Justice of the United States by President Warren G. Harding. Minnesota corporate lawyer Pierce Butler wrote Taft a genial letter, extending his congratulations and best wishes. “I felicitate you because it is an honor to any man to be chosen to that, the most exalted position in the world, and because no one who is qualified to discharge the duties of the office can fail to rejoice in attaining it. But the country is to be congratulated much more than you are.” ¹     

Democracy in Justice Kennedy's America: Reading Obergefell with Tocqueville

Justice Anthony Kennedy cites Alexis de Tocqueville in support of the majority opinion in Obergefell v. Hodges. But Kennedy's citation leaves much out of Tocqueville's original text. Looking at what Kennedy erases in his quotation of Tocqueville indicates some of the broader cultural and historic erasures that are present in the Obergefell decision (and in the Supreme Court's latter-day treatment of marriage and the family in general). Standing Obergefell next to Tocqueville yields suggestive possibilities for evaluating the evolution of recent Supreme Court jurisprudence—and recent American political thought, more generally speaking—on questions of marriage and family. Specifically, reading Obergefell with Tocqueville reveals the intellectual and political weakness of the contemporary Supreme Court.     

Pax Ottomanica No More! The “Peace” Discourse in Turkish Foreign Policy in the Post‐Davutoğlu Era and the Prolonged Syrian Crisis

Turkey's eight years between 2008 and 2016 has been dominated by Ahmet Davuto?lu's vision of foreign policy, which was derived from his multi‐edition book Strategic Depth (2000). In order to be able to present itself in its larger periphery as a pro‐active, trustworthy actor, Davuto?lu argued, Turkey needed to change the foreign‐policy paradigms with which it was stranded. As the Strategic Depth vision unfolded, it drew explicit parallels between modern Turkey and the Ottoman neighborhood policy. Turkey‐Syria relations since 2008 had been providing the seekers of neo‐Ottomanist tendencies in the contemporary Turkish foreign policy with abundant examples, because Syria, once an Ottoman territory and always a challenge to modern Turkey, came to be the first poster country in the shift towards Turkey's imperial awakening. In the post‐Davuto?lu era, however, the rhetoric and practices of the past eight years seemed suddenly to disappear from the use of the Turkish agents of foreign policy; the new code of terms and actions to replace the Strategic Depth version is yet to be decided. This study seeks to pin down the neo‐imperialist character of Turkey's foreign‐policy discourse of the aforementioned eight years and contribute to discussions of the Turkish aspiration of neo‐Ottomanism with focus on the Syrian crisis through the Justice and Development Party's re‐invented peace discourse. In doing so, it aims to find out and elaborate on the current tendencies of Turkish foreign policy, which are no longer as explicit and articulated as they were during Davuto?lu's ministry and prime ministry. As Turkey's cross‐border operation to Syria — the Euphrates Shield — ends and another one in Idlib begins, a discursive analysis stretching from Davutoglu's diplomatic “zero problems” with Damascus to the military use of ground troops and air force is timely. Such an endeavor would be essential in understanding the spectacular swing from one edge to the other in Turkey's inclination over a phantasmagorical empire.     

“UNABLE TO RESIST”: ON THE “POSSIBILITY” OF “IMPOSSIBILITY” AND CHRISTOPHE BOUTON'S TIME AND FREEDOM

This essay reflects critically on Martin Heidegger's remarks about authenticity and death with the aid of Christophe Bouton's Temps et liberté (2002), translated by Christopher Macann as Time and Freedom (2014). It first raises general questions concerning the possible thematic relationship between human endeavoring (action) and the experiences of finitude and freedom. Heidegger's Being and Time is particularly useful for exploring this relationship, but certain problems emerge when using this text for accessing the essay's themes. To wit: there are good reasons for mistrusting readings of Being and Time as a “practical” guide for grounding action. Against the practical reading, the essay wishes to reclaim the ontological‐existential significance of Heidegger's text. Although Bouton's treatment of Being and Time excludes its ontological dimensions and is entirely practical, even to the point of disregarding certain theoretical risks inherent in this approach, Bouton's study is indispensable for situating Being and Time in a historical‐intellectual context, whereby the experiences of freedom and time are understood within certain metaphysical presuppositions rendering them difficult to establish together on reliable grounds. Following Bouton's lead, the essay shows that the hermeneutic differences between practical and ontological readings of Being and Time can be explored through reflections on what Heidegger might have meant by the term “Möglichkeit” (“possibility”), from which Bouton infers “freedom.” It is alleged that Bouton does not fully consider all of Heidegger's assertions regarding Möglichkeit, most problematically the claim that the human being's most essential “possibility” is its “impossibility,” that is to say, its death.     

The Judicial Bookshelf

A well‐established fact of American government is the unpredictability of vacancies on the U.S. Supreme Court. Representatives and Senators face voters every two and six years, respectively. A President serves for four years and may be reelected only once. Justices, however, do not sit for fixed terms and in effect enjoy life tenure. After his inauguration as the forty‐third president in January 2001, George W. Bush had no opportunity to make a High Court appointment until he was well into his second term when, on July 1, 2005, Justice Sandra Day O'Connor announced her intention to leave the Bench. ¹ By contrast, the forty‐fourth President encountered his first High Court vacancy much sooner, and in his first term, as Justice David Hackett Souter notified the Obama White House on May 1, 2009, of his intention to retire from “regular active service as a Justice” when the Court recessed for the summer. ²     

The “Good Old #3 Club” Gets a New Member

It has been said that serving on the U.S. Supreme Court is like being a member of an exclusive club. Yet within this club, there are even more exclusive clubs that only a small number of Justices are permitted to join. These shadowy associations are unseen by the public, receive no publicity, and are not even known to the Justices who are excluded. The existence of these secretive organizations has recently been revealed through the release of Justice Harry Blackmun's papers at the Library of Congress. This article is the first serious attempt to research the existence, membership, and practices of these clandestine alliances. Ultimately, as with many High Court practices, these newly uncovered connections may be in need of reform, and I offer a number of solutions to define membership criteria and improve their functioning.     

Ex-Justice Campbell: The Case of the Creative Advocate

It can be argued that so‐called appellate judicial distinction sometimes results from a Justice basking in the positive reaction to a decision that may be based in part—or even in totality—on arguments raised by counsel. If this is true, who, then, is the distinguished figure? The successful advocate is one who can persuade an appellate court as to the soundness of the position he or she takes. The Justice gets the credit, while the attorney gets the fee. But is there more to being a great advocate besides winning cases? This article examines aspects of John Campbell's career, in what may be called “the case of the creative advocate.” It will focus in particular on the greatest case he ever argued, the Slaughterhouse Cases, ¹ and will draw on the recent book I coauthored with Ronald Labbé. ²